Establishment of Rights of Way by Prescription under Section 34 of the Land Law (Ireland) Act 1896

Introduction

The case of Harnett & Ors v Broadreach Investments Ltd (Approved) ([2025] IEHC 47) adjudicated by the High Court of Ireland addresses the complex issue of establishing a right of way over private lands. The plaintiffs, members of the Harnett family, sought to assert their right of way over the defendant’s property, Bellinter House, which had historically been part of a larger estate but was subdivided in 1965. This case delves into the application of section 34 of the Land Law (Ireland) Act 1896, exploring doctrines of prescription, necessity, and common intention in the context of land access rights.

Summary of the Judgment

Mr. Justice Conor Dignam, presiding over the case, carefully examined the plaintiffs' numerous claims asserting a right of way through various legal doctrines. The plaintiffs contended that their continuous use of the main avenue of Bellinter House granted them easements by prescription, necessity, or under the doctrine of common intention. The defendants disputed these claims, arguing that any such rights had been abandoned due to alterations in the land’s use and the installation of barriers restricting access.

After a thorough analysis of the evidence and legal principles, Justice Dignam concluded that certain rights of way had been established by prescription due to continuous use over the requisite period. However, some uses of the right of way were deemed excessive or colorable, thereby limiting its scope. The court emphasized the importance of distinguishing between mere permission and rights exercised "as of right," especially when gates were periodically locked, signaling a change in the nature of the grant.

Analysis

Precedents Cited

The judgment extensively referenced foundational cases and legal doctrines to support its reasoning:

• Callinan v M'Mahon [1918] 52 ILTR 77: Established that privileges enjoyed by a dominant tenement can convert into enforceable easements under section 34 if they meet certain conditions.
• Maguire v Bourne [1921] IR 148: Highlighted the necessity of evaluating continuous use for easement by prescription and the importance of intention.
• Zopitar Ltd v Jacob [2018] 1 IR 657: Clarified the requirements for establishing easements by prescription, emphasizing the non-necessity of express permission.
• Walsh v Sligo County Council [2013] 4 IR 417: Distinguished between public and private rights of way, underscoring the role of dedication and owner’s intention.

These precedents collectively informed the court’s approach to assessing the validity of the plaintiffs' claims, particularly in distinguishing between rights acquired by prescription and those necessitated by common intention.

Legal Reasoning

The crux of the court’s reasoning centered on the application of section 34 of the Land Law (Ireland) Act 1896. The court dissected this section into two parts: one dealing with existing legal easements and rights, and the other addressing privileges converted into rights upon subdivision.

Justice Dignam scrutinized whether the plaintiffs’ use of the main avenue constituted a legal right under section 34 by examining:

• Continuous Use: The plaintiffs demonstrated over twenty years of uninterrupted use of the avenue for both domestic and agricultural purposes, satisfying the requirement for prescription.
• Necessity and Common Intention: The court evaluated whether the right was necessary for the enjoyment of the land or arose from a shared intention between parties. It concluded that no such necessity or common intention existed independent of prescription.
• Excessive and Colorable Use: The plaintiffs’ use within the bounds of their established rights was deemed appropriate. However, certain uses, especially post-subdivision for accessing new parcels, were considered excessive and thus did not extend the right of way.

Additionally, the court navigated the complexities arising from annual locking of gates, which the defendant argued indicated a mere permission rather than a right of way. The prevalence and timing of gate closures were weighed against the evidence of continuous and purposeful use by the plaintiffs.

Impact

This judgment sets a significant precedent in Irish land law by elucidating the application of prescription under section 34 and refining the parameters distinguishing between rights exercised as of right and those maintained by mere permission. Future cases will reference this decision to determine the legitimacy of right of way claims, especially in contexts where land has been subdivided and usage patterns have evolved.

Moreover, the case reinforces the necessity for clear documentation and adherence to established legal frameworks when asserting land access rights. Landowners must be vigilant in maintaining the nature of their grants, as excessive or colorable usage can limit or negate established rights.

Complex Concepts Simplified

Right of Way by Prescription

Prescription refers to the acquisition of a right over land through continuous and uninterrupted use over a statutory period, typically twenty years in Ireland. For a right of way to be acquired by prescription:

• The use must be continuous and as of right, not based on force, secrecy, or permission.
• There must be an element of necessity or common intention that the use benefits the dominant tenement.

Excessive and Colorable Use

Excessive use occurs when the established use of an easement goes beyond what was originally intended or necessary. Colorable use refers to usage that appears legitimate but is, in fact, improper or inconsistent with the nature of the easement.

Doctrine of Common Intention

This doctrine assesses whether parties intended to create a specific easement based on their mutual understanding and conduct, beyond what was explicitly documented.

Conclusion

The High Court’s decision in Harnett & Ors v Broadreach Investments Ltd underscores the enduring significance of established legal doctrines in resolving land access disputes. By affirming the existence of rights of way acquired through prescription, the Court has provided clarity on how historical usage patterns influence current land rights. This judgment not only resolves the immediate conflict between the Harnett family and Broadreach Investments Ltd but also serves as a guiding framework for similar disputes in the future, ensuring that land access rights are fairly adjudicated based on continuous use and legal principles.